Marvin Heiferman

Curator and writer Marvin Heiferman originates projects about photographs, imaging, and visual culture. His most recent book is Photography Changes Everything (2012).

As clear as photographs may be, their use can turn unruly. One example: Marc Adelman’s Stelen (2007–11), an installation of 50 appropriated snapshots on view at The Jewish Museum before being withdrawn last summer. At issue: photos of men posing among the pillars of Berlin’s Holocaust Memorial used as their profile pictures on GayRomeo.com, a European social community and dating site. The problem: like so many digital images that won’t stay put, as their context changed so did their meaning and impact.

Adelman describes Stelen as “an inquiry into history, remembrance, and desire,” and what caught his attention on a website accessible to anyone motivated enough to sign in is understandable. Seven decades after homosexuals were persecuted in Nazi Germany, gay men chose to be depicted in photos that, perhaps for some, were figurative screw-you gestures made at a site where “desire is least expected to surface.” Adelman, whose work explores how images function in relation to gay people, repurposed some of them, a decades-old tactic that has made and complicated more than a few careers.

Digital images, like desire, have a way of popping up and triggering problems, as did Adelman’s piece, his first to be acquired by a museum. At first, one person represented in it, upset at being outed by the display of his image, threatened legal action. Then two more men did. The Museum and Adelman worked briefly and in tandem to resolve the legal, ethical, and privacy issues that flared up before things went awry. One can argue that a gay artist exploring gay issues should have been more sensitive to outing people in a hyperlinked world where homosexuality is still vilified, criminalized, and, in some places, punishable by death. One can argue that given Adelman’s offers to rethink and reconfigure his piece, the Museum should have operated more in problem-solving than in crisis-management mode. One can argue that, today, it is naïve for anyone to believe that “private” images will stay private once they’re online, but not that many years ago—when many of the images on GayRomeo.com were uploaded—people may have assumed more privacy for, and control over, the images made by or of them.

Those days are gone. Last year, for example, two New Jersey men were justifiably horrified to discover that a photograph of them kissing on their wedding day had been copied, photoshopped, and used to illustrate smear attacks against two of Colorado’s pro-gay politicians who were up for election last fall. The couple and their wedding photographer quickly launched a lawsuit. One can just as easily imagine a similar response by someone depicted in Stelen and argue that Adelman should have contacted the people depicted in the pictures he used, explained his intentions, and gotten permission to use their likenesses in it. But he didn’t. As digital technology makes the appropriation of images easy and almost instinctual, the issues surrounding the ethical and legal use of those images are guaranteed to keep making waves and the news.

As for the images in question, who literally holds the right to use and/or control them? It’s complicated. In most cases, it is the photographer who takes them (assuming that a human was holding the camera, in the first place.) But then what kind of power, if any, do or should the people depicted in them hold? What responsibilities should govern the display, storage, distribution, or ownership of those images, in one form or another? And what of viewers whose responses to them, like privacy laws themselves, may vary from one country, culture, and sub-culture to another? We say we want artists to be provocative, but as the controversy around Stelen makes clear, there are lines we are not comfortable stepping over. Who decides and enforces what those lines are or should be? Do artists need to more thoughtfully consider how their works may reverberate outside the borders of the art world? Will museums in the not-so-distant-future require artists to show due diligence and sign indemnification clauses (like publishers require authors to do) before the exhibition or acquisition of their work?

Photographic images not only describe but now increasingly define and shape private and public life. They spread with lightning speed, are remarkably malleable, and spark responses from joy to outrage, all of which insures that our interactions with them will only grow more complex. If the situation surrounding Stelen got messy and the ethical and moral questions that were triggered are still unsettling, it’s a sign of the power of photography on and in our lives and a reminder, as this online project illustrates, that we are destined to re-examine and keep talking about that.

What are the ethical concerns for artists who appropriate images from the Internet? To what extent should artists consider privacy, the personal safety of their subjects, and First Amendment rights?